Objectives

Marginal note:Objectives

1 The objectives of these Guidelines are

• (a) to establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;

• (b) to reduce conflict and tension between spouses by making the calculation of child support orders more objective;

• (c) to improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and

• (d) to ensure consistent treatment of spouses and children who are in similar circumstances.

Interpretation

Marginal note:Definitions

• 2 (1) The definitions in this subsection apply in these Guidelines.

  Act

  Act means the Divorce Act. (Loi)

  child

  child means a child of the marriage. (enfant)

  income

  income means the annual income determined under sections 15 to 20. (revenu)

  order assignee

  order assignee means a minister, member or agency referred to in subsection 20.1(1) of the Act to whom a child support order is assigned in accordance with that subsection. (cessionnaire de la créance alimentaire)

  spouse

  spouse has the meaning assigned by subsection 2(1) of the Act, and includes a former spouse. (époux)

  table

  table means a federal child support table set out in Schedule I. (table)

• Marginal note:Income Tax Act

  (2) Words and expressions that are used in sections 15 to 21 and that are not defined in this section have the meanings assigned to them under the Income Tax Act.

• Marginal note:Most current information

  (3) Where, for the purposes of these Guidelines, any amount is determined on the basis of specified information, the most current information must be used.

• Marginal note:Application of Guidelines

  (4) In addition to child support orders, these Guidelines apply, with such modifications as the circumstances require, to

  • (a) interim orders under subsections 15.1(2) and 19(9) of the Act;

  • (b) orders varying a child support order;

  • (c) orders referred to in subsection 19(7) of the Act; and

  • (d) recalculations under paragraph 25.1(1)(b) of the Act.

• Marginal note:Recalculations

  (5) For greater certainty, the provisions of these Guidelines that confer a discretionary power on a court do not apply to recalculations under paragraph 25.1(1)(b) of the Act by a provincial child support service.

Amount of Child Support

Marginal note:Presumptive rule

• 3 (1) Unless otherwise provided under these Guidelines, the amount of a child support order for children under the age of majority is

  • (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and

  • (b) the amount, if any, determined under section 7.

• Marginal note:Child the age of majority or over

  (2) Unless otherwise provided under these Guidelines, where a child to whom a child support order relates is the age of majority or over, the amount of the child support order is

  • (a) the amount determined by applying these Guidelines as if the child were under the age of majority; or

  • (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child.

• Marginal note:Applicable table

  (3) The applicable table is

  • (a) if the spouse against whom an order is sought resides in Canada,

    • (i) the table for the province in which that spouse ordinarily resides at the time the application for the child support order, or for a variation order in respect of a child support order, is made or the amount is to be recalculated under section 25.1 of the Act,

    • (ii) where the court is satisfied that the province in which that spouse ordinarily resides has changed since the time described in subparagraph (i), the table for the province in which the spouse ordinarily resides at the time of determining the amount of support, or

    • (iii) where the court is satisfied that, in the near future after determination of the amount of support, that spouse will ordinarily reside in a given province other than the province in which the spouse ordinarily resides at the time of that determination, the table for the given province; and

  • (b) if the spouse against whom an order is sought resides outside of Canada, or if the residence of that spouse is unknown, the table for the province where the other spouse ordinarily resides at the time the application for the child support order or for a variation order in respect of a child support order is made or the amount is to be recalculated under section 25.1 of the Act.

Marginal note:Incomes over $150,000

4 Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is

• (a) the amount determined under section 3; or

• (b) if the court considers that amount to be inappropriate,

  • (i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;

  • (ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and

  • (iii) the amount, if any, determined under section 7.

Marginal note:Spouse in place of a parent

5 Where the spouse against whom a child support order is sought stands in the place of a parent for a child, the amount of a child support order is, in respect of that spouse, such amount as the court considers appropriate, having regard to these Guidelines and any other parent’s legal duty to support the child.

Marginal note:Medical and dental insurance

6 In making a child support order, where medical or dental insurance coverage for the child is available to either spouse through his or her employer or otherwise at a reasonable rate, the court may order that coverage be acquired or continued.

Marginal note:Special or extraordinary expenses

• 7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:

  • (a) child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;

  • (b) that portion of the medical and dental insurance premiums attributable to the child;

  • (c) health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses;

  • (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;

  • (e) expenses for post-secondary education; and

  • (f) extraordinary expenses for extracurricular activities.

• Marginal note:Definition of “extraordinary expenses”

  (1.1) For the purposes of paragraphs (1)(d) and (f), the term extraordinary expenses means

  • (a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse’s income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or

  • (b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account

    • (i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate,

    • (ii) the nature and number of the educational programs and extracurricular activities,

    • (iii) any special needs and talents of the child or children,

    • (iv) the overall cost of the programs and activities, and

    • (v) any other similar factor that the court considers relevant.

• Marginal note:Sharing of expense

  (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child.

• Marginal note:Subsidies, tax deductions, etc.

  (3) In determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim a subsidy, benefit or income tax deduction or credit relating to the expense.

Marginal note:Split custody

8 Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.

Marginal note:Shared custody

9 Where a spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the child support order must be determined by taking into account

• (a) the amounts set out in the applicable tables for each of the spouses;

• (b) the increased costs of shared custody arrangements; and

• (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought.

Marginal note:Undue hardship

• 10 (1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

• Marginal note:Circumstances that may cause undue hardship

  (2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:

  • (a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;

  • (b) the spouse has unusually high expenses in relation to exercising access to a child;

  • (c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;

  • (d) the spouse has a legal duty to support a child, other than a child of the marriage, who is

    • (i) under the age of majority, or

    • (ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and

  • (e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

• Marginal note:Standards of living must be considered

  (3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.

• Marginal note:Standards of living test

  (4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.

• Marginal note:Reasonable time

  (5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.

• Marginal note:Reasons

  (6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so.

Elements of a Child Support Order

Marginal note:Form of payments

11 The court may require in a child support order that the amount payable under the order be paid in periodic payments, in a lump sum or in a lump sum and periodic payments.

Marginal note:Security

12 The court may require in the child support order that the amount payable under the order be paid or secured, or paid and secured, in the manner specified in the order.

Marginal note:Information to be specified in order

13 A child support order must include the following information:

• (a) the name and birth date of each child to whom the order relates;

• (b) the income of any spouse whose income is used to determine the amount of the child support order;

• (c) the amount determined under paragraph 3(1)(a) for the number of children to whom the order relates;

• (d) the amount determined under paragraph 3(2)(b) for a child the age of majority or over;

• (e) the particulars of any expense described in subsection 7(1), the child to whom the expense relates, and the amount of the expense or, where that amount cannot be determined, the proportion to be paid in relation to the expense; and

• (f) the date on which the lump sum or first payment is payable and the day of the month or other time period on which all subsequent payments are to be made.

Variation of Child Support Orders

Marginal note:Circumstances for variation

14 For the purposes of subsection 17(4) of the Act, any one of the following constitutes a change of circumstances that gives rise to the making of a variation order in respect of a child support order:

• (a) in the case where the amount of child support includes a determination made in accordance with the applicable table, any change in circumstances that would result in a different child support order or any provision thereof;

• (b) in the case where the amount of child support does not include a determination made in accordance with a table, any change in the condition, means, needs or other circumstances of either spouse or of any child who is entitled to support; and

• (c) in the case of an order made before May 1, 1997, the coming into force of section 15.1 of the Act, enacted by section 2 of chapter 1 of the Statutes of Canada, (1997).

Income

Marginal note:Determination of annual income

• 15 (1) Subject to subsection (2), a spouse’s annual income is determined by the court in accordance with sections 16 to 20.

• Marginal note:Agreement

  (2) Where both spouses agree in writing on the annual income of a spouse, the court may consider that amount to be the spouse’s income for the purposes of these Guidelines if the court thinks that the amount is reasonable having regard to the income information provided under section 21.

Marginal note:Calculation of annual income

16 Subject to sections 17 to 20, a spouse’s annual income is determined using the sources of income set out under the heading “Total income” in the T1 General form issued by the Canada Customs and Revenue Agency and is adjusted in accordance with Schedule III.

Marginal note:Pattern of income

• 17 (1) If the court is of the opinion that the determination of a spouse’s annual income under section 16 would not be the fairest determination of that income, the court may have regard to the spouse’s income over the last three years and determine an amount that is fair and reasonable in light of any pattern of income, fluctuation in income or receipt of a non-recurring amount during those years.

• Marginal note:Non-recurring losses

  (2) Where a spouse has incurred a non-recurring capital or business investment loss, the court may, if it is of the opinion that the determination of the spouse’s annual income under section 16 would not provide the fairest determination of the annual income, choose not to apply sections 6 and 7 of Schedule III, and adjust the amount of the loss, including related expenses and carrying charges and interest expenses, to arrive at such amount as the court considers appropriate.

Marginal note:Shareholder, director or officer

• 18 (1) Where a spouse is a shareholder, director or officer of a corporation and the court is of the opinion that the amount of the spouse’s annual income as determined under section 16 does not fairly reflect all the money available to the spouse for the payment of child support, the court may consider the situations described in section 17 and determine the spouse’s annual income to include

  • (a) all or part of the pre-tax income of the corporation, and of any corporation that is related to that corporation, for the most recent taxation year; or

  • (b) an amount commensurate with the services that the spouse provides to the corporation, provided that the amount does not exceed the corporation’s pre-tax income.

• Marginal note:Adjustment to corporation’s pre-tax income

  (2) In determining the pre-tax income of a corporation for the purposes of subsection (1), all amounts paid by the corporation as salaries, wages or management fees, or other payments or benefits, to or on behalf of persons with whom the corporation does not deal at arm’s length must be added to the pre-tax income, unless the spouse establishes that the payments were reasonable in the circumstances.

Marginal note:Imputing income

• 19 (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:

  • (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;

  • (b) the spouse is exempt from paying federal or provincial income tax;

  • (c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;

  • (d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;

  • (e) the spouse’s property is not reasonably utilized to generate income;

  • (f) the spouse has failed to provide income information when under a legal obligation to do so;

  • (g) the spouse unreasonably deducts expenses from income;

  • (h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and

  • (i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

• Marginal note:Reasonableness of expenses

  (2) For the purpose of paragraph (1)(g), the reasonableness of an expense deduction is not solely governed by whether the deduction is permitted under the Income Tax Act.

Marginal note:Non-resident

• 20 (1) Subject to subsection (2), where a spouse is a non-resident of Canada, the spouse’s annual income is determined as though the spouse were a resident of Canada.

• Marginal note:Non-resident taxed at higher rates

  (2) Where a spouse is a non-resident of Canada and resides in a country that has effective rates of income tax that are significantly higher than those applicable in the province in which the other spouse ordinarily resides, the spouse’s annual income is the amount that the court determines to be appropriate taking those rates into consideration.

Income Information

Marginal note:Obligation of applicant

• 21 (1) A spouse who is applying for a child support order and whose income information is necessary to determine the amount of the order must include the following with the application:

  • (a) a copy of every personal income tax return filed by the spouse for each of the three most recent taxation years;

  • (b) a copy of every notice of assessment and reassessment issued to the spouse for each of the three most recent taxation years;

  • (c) where the spouse is an employee, the most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not provided by the employer, a letter from the spouse’s employer setting out that information including the spouse’s rate of annual salary or remuneration;

  • (d) where the spouse is self-employed, for the three most recent taxation years

    • (i) the financial statements of the spouse’s business or professional practice, other than a partnership, and

    • (ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the spouse does not deal at arm’s length;

  • (e) where the spouse is a partner in a partnership, confirmation of the spouse’s income and draw from, and capital in, the partnership for its three most recent taxation years;

  • (f) where the spouse controls a corporation, for its three most recent taxation years

    • (i) the financial statements of the corporation and its subsidiaries, and

    • (ii) a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length;

  • (g) where the spouse is a beneficiary under a trust, a copy of the trust settlement agreement and copies of the trust’s three most recent financial statements; and

  • (h) in addition to any income information that must be included under paragraphs (c) to (g), where the spouse receives income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source, the most recent statement of income indicating the total amount of income from the applicable source during the current year, or if such a statement is not provided, a letter from the appropriate authority stating the required information.

• Marginal note:Obligation of respondent

  (2) A spouse who is served with an application for a child support order and whose income information is necessary to determine the amount of the order, must, within 30 days after the application is served if the spouse resides in Canada or the United States or within 60 days if the spouse resides elsewhere, or such other time limit as the court specifies, provide the court, as well as the other spouse or the order assignee, as the case may be, with the documents referred to in subsection (1).

• Marginal note:Special expenses or undue hardship

  (3) Where, in the course of proceedings in respect of an application for a child support order, a spouse requests an amount to cover expenses referred to in subsection 7(1) or pleads undue hardship, the spouse who would be receiving the amount of child support must, within 30 days after the amount is sought or undue hardship is pleaded if the spouse resides in Canada or the United States or within 60 days if the spouse resides elsewhere, or such other time limit as the court specifies, provide the court and the other spouse with the documents referred to in subsection (1).

• Marginal note:Income over $150,000

  (4) Where, in the course of proceedings in respect of an application for a child support order, it is established that the income of the spouse who would be paying the amount of child support is greater than $150,000, the other spouse must, within 30 days after the income is established to be greater than $150,000 if the other spouse resides in Canada or the United States or within 60 days if the other spouse resides elsewhere, or such other time limit as the court specifies, provide the court and the spouse with the documents referred to in subsection (1).

• Marginal note:Making of rules not precluded

  (5) Nothing in this section precludes the making of rules by a competent authority, within the meaning of section 25 of the Act, respecting the disclosure of income information that is considered necessary for the purposes of the determination of an amount of a child support order.

Marginal note:Failure to comply

• 22 (1) Where a spouse fails to comply with section 21, the other spouse may apply

  • (a) to have the application for a child support order set down for a hearing, or move for judgment; or

  • (b) for an order requiring the spouse who failed to comply to provide the court, as well as the other spouse or order assignee, as the case may be, with the required documents.

• Marginal note:Costs of the proceedings

  (2) Where a court makes an order under paragraph (1)(a) or (b), the court may award costs in favour of the other spouse up to an amount that fully compensates the other spouse for all costs incurred in the proceedings.

Marginal note:Adverse inference

23 Where the court proceeds to a hearing on the basis of an application under paragraph 22(1)(a), the court may draw an adverse inference against the spouse who failed to comply and impute income to that spouse in such amount as it considers appropriate.

Marginal note:Failure to comply with court order

24 Where a spouse fails to comply with an order issued on the basis of an application under paragraph 22(1)(b), the court may

• (a) strike out any of the spouse’s pleadings;

• (b) make a contempt order against the spouse;

• (c) proceed to a hearing, in the course of which it may draw an adverse inference against the spouse and impute income to that spouse in such amount as it considers appropriate; and

• (d) award costs in favour of the other spouse up to an amount that fully compensates the other spouse for all costs incurred in the proceedings.

Marginal note:Continuing obligation to provide income information

• 25 (1) Every spouse against whom a child support order has been made must, on the written request of the other spouse or the order assignee, not more than once a year after the making of the order and as long as the child is a child within the meaning of these Guidelines, provide that other spouse or the order assignee with

  • (a) the documents referred to in subsection 21(1) for any of the three most recent taxation years for which the spouse has not previously provided the documents;

  • (b) as applicable, any current information, in writing, about the status of any expenses included in the order pursuant to subsection 7(1); and

  • (c) as applicable, any current information, in writing, about the circumstances relied on by the court in a determination of undue hardship.

• Marginal note:Below minimum income

  (2) Where a court has determined that the spouse against whom a child support order is sought does not have to pay child support because his or her income level is below the minimum amount required for application of the tables, that spouse must, on the written request of the other spouse, not more than once a year after the determination and as long as the child is a child within the meaning of these Guidelines, provide the other spouse with the documents referred to in subsection 21(1) for any of the three most recent taxation years for which the spouse has not previously provided the documents.

• Marginal note:Obligation of receiving spouse

  (3) Where the income information of the spouse in favour of whom a child support order is made is used to determine the amount of the order, the spouse must, not more than once a year after the making of the order and as long as the child is a child within the meaning of these Guidelines, on the written request of the other spouse, provide the other spouse with the documents and information referred to in subsection (1).

• Marginal note:Information requests

  (4) Where a spouse or an order assignee requests information from the other spouse under any of subsections (1) to (3) and the income information of the requesting spouse is used to determine the amount of the child support order, the requesting spouse or order assignee must include the documents and information referred to in subsection (1) with the request.

• Marginal note:Time limit

  (5) A spouse who receives a request made under any of subsections (1) to (3) must provide the required documents within 30 days after the request’s receipt if the spouse resides in Canada or the United States and within 60 days after the request’s receipt if the spouse resides elsewhere.

• Marginal note:Deemed receipt

  (6) A request made under any of subsections (1) to (3) is deemed to have been received 10 days after it is sent.

• Marginal note:Failure to comply

  (7) A court may, on application by either spouse or an order assignee, where the other spouse has failed to comply with any of subsections (1) to (3)

  • (a) consider the other spouse to be in contempt of court and award costs in favour of the applicant up to an amount that fully compensates the applicant for all costs incurred in the proceedings; or

  • (b) make an order requiring the other spouse to provide the required documents to the court, as well as to the spouse or order assignee, as the case may be.

• Marginal note:Unenforceable provision

  (8) A provision in a judgment, order or agreement purporting to limit a spouse’s obligation to provide documents under this section is unenforceable.

Marginal note:Provincial child support services

26 A spouse or an order assignee may appoint a provincial child support service to act on their behalf for the purposes of requesting and receiving income information under any of subsections 25(1) to (3), as well as for the purposes of an application under subsection 25(7).

Coming into Force

Marginal note:Coming into force

27 These Guidelines come into force on May 1, 1997.